§ 3614-C — Home care worker wage parity

§ 3614-c. Home care worker wage parity. 1. As used in this section,\nthe following terms shall have the following meaning:\n (a) "Living wage law" means any law enacted by Nassau, Suffolk or\nWestchester county or a city with a population of one million or more\nwhich establishes a minimum wage for some or all employees who perform\nwork on contracts with such county or city.\n (b) "Total compensation" means all wages and other direct compensation\npaid to or provided on behalf of the employee including, but not limited\nto, wages, health, education or pension benefits, supplements in lieu of\nbenefits and compensated time off, except that it does not include\nemployer taxes or employer portion of payments for statutory benefits,\nincluding but not limited to FICA, disability insurance, unemployment\ninsurance and workers' compensation.\n (c) "Prevailing rate of total compensation" means the average hourly\namount of total compensation paid to all home care aides covered by\nwhatever collectively bargained agreement covers the greatest number of\nhome care aides in a city with a population of one million or more. For\npurposes of this definition, any set of collectively bargained\nagreements in such city with substantially the same terms and conditions\nrelating to total compensation shall be considered as a single\ncollectively bargained agreement.\n (d) "Home care aide" means a home health aide, personal care aide,\nhome attendant, personal assistant performing consumer directed personal\nassistance services pursuant to section three hundred sixty-five-f of\nthe social services law, or other licensed or unlicensed person whose\nprimary responsibility includes the provision of in-home assistance with\nactivities of daily living, instrumental activities of daily living or\nhealth-related tasks; provided, however, that home care aide does not\ninclude any individual (i) working on a casual basis, or (ii) (except\nfor a person employed under the consumer directed personal assistance\nprogram under section three hundred sixty-five-f of the social services\nlaw) who is a relative through blood, marriage or adoption of: (1) the\nemployer; or (2) the person for whom the worker is delivering services,\nunder a program funded or administered by federal, state or local\ngovernment.\n (e) "Managed care plan" means any managed care program, organization\nor demonstration covering personal care or home health aide services,\nand which receives premiums funded, in whole or in part, by the New York\nstate medical assistance program, including but not limited to all\nMedicaid managed care, Medicaid managed long term care, Medicaid\nadvantage, and Medicaid advantage plus plans and all programs of\nall-inclusive care for the elderly.\n (f) "Episode of care" means any service unit reimbursed, in whole or\nin part, by the New York state medical assistance program, whether\nthrough direct reimbursement or covered by a premium payment, and which\ncovers, in whole or in part, any service provided by a home care aide,\nincluding but not limited to all service units defined as visits, hours,\ndays, months or episodes.\n (g) "Cash portion of the minimum rate of home care aide total\ncompensation" means the minimum amount of home care aide total\ncompensation that may be paid in cash wages, as determined by the\ndepartment in consultation with the department of labor.\n (h) "Benefit portion of the minimum rate of home care aide total\ncompensation" means the portion of home care aide total compensation\nthat may be paid in cash or health, education or pension benefits, wage\ndifferentials, supplements in lieu of benefits and compensated time off,\nas determined by the department in consultation with the department of\nlabor. Cash wages paid pursuant to increases in the state or federal\nminimum wage cannot be used to satisfy the benefit portion of the\nminimum rate of home care aide total compensation.\n (i) "Fiscal intermediary" means a fiscal intermediary in the consumer\ndirected personal assistance program under section three hundred\nsixty-five-f of the social services law.\n 2. Notwithstanding any inconsistent provision of law, rule or\nregulation, no payments by government agencies shall be made to\ncertified home health agencies, long term home health care programs,\nmanaged care plans, fiscal intermediaries, the nursing home transition\nand diversion waiver program under section three hundred sixty-six of\nthe social services law, or the traumatic brain injury waiver program\nunder section twenty-seven hundred forty of this chapter for any episode\nof care furnished, in whole or in part, by any home care aide who is\ncompensated at amounts less than the applicable minimum rate of home\ncare aide total compensation established pursuant to this section.\n 3. (a) The minimum rate of home care aide total compensation in a city\nwith a population of one million or more shall be:\n (i) for the period March first, two thousand twelve through February\ntwenty-eighth, two thousand thirteen, ninety percent of the total\ncompensation mandated by the living wage law of such city;\n (ii) for the period March first, two thousand thirteen through\nFebruary twenty-eighth, two thousand fourteen, ninety-five percent of\nthe total compensation mandated by the living wage law of such city;\n (iii) for the period March first, two thousand fourteen through March\nthirty-first two thousand sixteen, no less than the prevailing rate of\ntotal compensation as of January first, two thousand eleven, or the\ntotal compensation mandated by the living wage law of such city,\nwhichever is greater;\n (iv) for the period April first, two thousand sixteen, through\nDecember thirty-first, two thousand twenty-two the cash portion of the\nminimum rate of home care aide total compensation shall be ten dollars\nor the minimum wage as laid out in paragraph (a) of subdivision one of\nsection six hundred fifty-two of the labor law, whichever is higher. The\nbenefit portion of the minimum rate of home care aide total compensation\nshall be four dollars and nine cents;\n (v) for the period January first, two thousand twenty-three through\nDecember thirty-first, two thousand twenty-three, the cash portion of\nthe minimum rate of home care aide total compensation shall be the\nminimum wage for home care aides in the applicable region, as defined in\nsection thirty-six hundred fourteen-f of this article. The benefit\nportion of the minimum rate of home care aide total compensation shall\nbe four dollars and nine cents;\n (vi) for all periods on or after January first, two thousand\ntwenty-four, the cash portion of the minimum rate of home care aide\ntotal compensation shall be the minimum wage for home care aides in the\napplicable region, as defined in section thirty-six hundred fourteen-f\nof this article. The benefit portion of the minimum rate of home care\naide total compensation shall be two dollars and fifty-four cents.\n (b) The minimum rate of home care aide total compensation in the\ncounties of Nassau, Suffolk and Westchester shall be:\n (i) for the period March first, two thousand thirteen through February\ntwenty-eighth, two thousand fourteen, ninety percent of the total\ncompensation mandated by the living wage law as set on March first, two\nthousand thirteen of a city with a population of a million or more;\n (ii) for the period March first, two thousand fourteen through\nFebruary twenty-eighth, two thousand fifteen, ninety-five percent of the\ntotal compensation mandated by the living wage law as set on March\nfirst, two thousand fourteen of a city with a population of a million or\nmore;\n (iii) for the period March first, two thousand fifteen, through\nFebruary twenty-eighth, two thousand sixteen, one hundred percent of the\ntotal compensation mandated by the living wage law as set on March\nfirst, two thousand fifteen of a city with a population of a million or\nmore;\n (iv) for the period March first, two thousand sixteen through December\nthirty-first, two thousand twenty-two, the cash portion of the minimum\nrate of home care aide total compensation shall be ten dollars or the\nminimum wage as laid out in paragraph (b) of subdivision one of section\nsix hundred fifty-two of the labor law, whichever is higher. The benefit\nportion of the minimum rate of home care aide total compensation shall\nbe three dollars and twenty-two cents;\n (v) for the period January first, two thousand twenty-three through\nDecember thirty-first, two thousand twenty-three, the cash portion of\nthe minimum rate of home care aide total compensation shall be the\nminimum wage for the applicable region, as defined in section thirty-six\nhundred fourteen-f of this article. The benefit portion of the minimum\nrate of home care aide total compensation shall be three dollars and\ntwenty-two cents;\n (vi) for all periods on or after January first, two thousand\ntwenty-four, the cash portion of the minimum rate of home care aide\ntotal compensation shall be the minimum wage for the applicable region,\nas defined in section thirty-six hundred fourteen-f of this article. The\nbenefit portion of the minimum rate of home care aide total compensation\nshall be one dollar and sixty-seven cents.\n 4. The terms of this section shall apply equally to services provided\nby home care aides who work on episodes of care as direct employees of\ncertified home health agencies, long term home health care programs, or\nmanaged care plans, or as employees of licensed home care services\nagencies, limited licensed home care services agencies, or fiscal\nintermediaries, or under any other arrangement.\n 5. No payments by government agencies shall be made to certified home\nhealth agencies, licensed home care services agencies, long term home\nhealth care programs, managed care plans, fiscal intermediaries for any\nepisode of care without the certified home health agency, licensed home\ncare services agency, long term home health care program, managed care\nplan or the fiscal intermediary, having delivered prior written\ncertification to the commissioner annually, at a time prescribed by the\ncommissioner, on forms prepared by the department in consultation with\nthe department of labor, that all services provided under each episode\nof care during the period covered by the certification are in full\ncompliance with the terms of this section and any regulations\npromulgated pursuant to this section and that no portion of the dollars\nspent or to be spent to satisfy the wage or benefit portion under this\nsection shall be returned to the certified home health agency, licensed\nhome care services agency, long term home health care program, managed\ncare plan, or fiscal intermediary, related persons or entities, other\nthan to a home care aide as defined in this section to whom the wage or\nbenefits are due, as a refund, dividend, profit, or in any other manner.\nSuch written certification shall also verify that the certified home\nhealth agency, long term home health care program, or managed care plan\nhas received from the licensed home care services agency, fiscal\nintermediary, or other third party an annual statement of wage parity\nhours and expenses on a form provided by the department of labor\naccompanied by an independently-audited financial statement verifying\nsuch expenses.\n 5-a. No portion of the dollars spent or to be spent to satisfy the\nwage or benefit portion under this section shall be returned to the\ncertified home health agency, licensed home care services agency, long\nterm home health care program, managed care plan, or fiscal\nintermediary, related persons or entities, other than to a home care\naide as defined in this section to whom the wage or benefits are due, as\na refund, dividend, profit, or in any other manner.\n 6. If a certified home health agency, long term home health care\nprogram or managed care plan elects to provide home care aide services\nthrough contracts with licensed home care services agencies, fiscal\nintermediaries, or through other third parties, provided that the\nepisode of care on which the home care aide works is covered under the\nterms of this section, the certified home health agency, long term home\nhealth care program, or managed care plan shall include in its\ncontracts, a requirement that it be provided with a written\ncertification, verified by oath, from the licensed home care services\nagency, fiscal intermediary, or other third party, on forms prepared by\nthe department in consultation with the department of labor, which\nattests to the licensed home care services agency's, fiscal\nintermediary's, or other third party's compliance with the terms of this\nsection. Such contracts shall also obligate the licensed home care\nservices agency, fiscal intermediary, or other third party to provide\nthe certified home health agency, long term home health care program, or\nmanaged care plan all information from the licensed home care services\nagency, fiscal intermediary or other third party necessary to verify\ncompliance with the terms of this section, which shall include an annual\ncompliance statement of wage parity hours and expenses on a form\nprovided by the department of labor accompanied by an\nindependently-audited financial statement verifying such expenses. Such\nannual statements shall be available no less than annually for the\nprevious calendar year, at a time as prescribed by the commissioner.\nSuch certifications, the information necessary to verify compliance, and\nthe annual compliance statement and financial statements shall be\nretained by all certified home health agencies, long term home health\ncare programs, or managed care plans, and all licensed home care\nservices agencies, fiscal intermediaries, or other third parties for a\nperiod of no less than ten years, and made available to the department\nupon request. Any licensed home care services agency, fiscal\nintermediary, or other third party who shall upon oath verify any\nstatement required to be transmitted under this section and any\nregulations promulgated pursuant to this section which is known by such\nparty to be false shall be guilty of perjury and punishable as provided\nby the penal law.\n 6-a. The certified home health agency, long term home health care\nprogram, or managed care plan shall review and assess the annual\ncompliance statement of wage parity hours and expenses and make a\nwritten referral to the department of labor for any reasonably suspected\nfailures of licensed home care services agencies, fiscal intermediaries,\nor third parties to conform to the wage parity requirements of this\nsection.\n 7. The commissioner shall distribute to all certified home health\nagencies, long term home health care programs, managed care plans,\nlicensed home care services agencies, and fiscal intermediaries official\nnotice of the minimum rates of home care aide compensation at least one\nhundred twenty days prior to the effective date of each minimum rate for\neach social services district covered by the terms of this section.\n 7-a. Any certified home health agency, licensed home care services\nagency, long term home health care program, managed care plan, or fiscal\nintermediary, or other third party that willfully pays less than such\nstipulated minimums regarding wages and supplements, as established in\nthis section, shall be guilty of a misdemeanor and upon conviction shall\nbe punished, for a first offense by a fine of five hundred dollars or by\nimprisonment for not more than thirty days, or by both fine and\nimprisonment; for a second offense by a fine of one thousand dollars,\nand in addition thereto the contract on which the violation has occurred\nshall be forfeited; and no such person or corporation shall be entitled\nto receive any sum nor shall any officer, agent or employee of the state\npay the same or authorize its payment from the funds under his or her\ncharge or control to any person or corporation for work done upon any\ncontract, on which the certified home health agency, licensed home care\nservices agency, long term home health care program, managed care plan,\nor fiscal intermediary, or other third party has been convicted of a\nsecond offense in violation of the provisions of this section.\n 8. The commissioner is authorized to promulgate regulations, and may\npromulgate emergency regulations, to implement the provisions of this\nsection.\n 9. Nothing in this section should be construed as applicable to any\nservice provided by certified home health agencies, licensed home care\nservices agencies, long term home health care programs, managed care\nplans, or fiscal intermediaries except for all episodes of care\nreimbursed in whole or in part by the New York Medicaid program.\n 10. No certified home health agency, managed care plan, or long term\nhome health care program shall be liable for recoupment of payments or\nany other penalty under this section for services provided through a\nlicensed home care services agency, fiscal intermediary, or other third\nparty with which the certified home health agency, long term home health\ncare program, or managed care plan has a contract because the licensed\nagency, fiscal intermediary, or other third party failed to comply with\nthe provisions of this section if the certified home health agency, long\nterm home health care program, or managed care plan has reasonably and\nin good faith collected certifications and all information required\npursuant to this section and conducts the monitoring and reporting\nrequired by this section.\n